By Marc J. Randazza
Masterpiece Cakeshop was supposed to be one of the decisive battles in the war for “religious freedom,” or “gay rights” or “free speech,” or whatever you wanted it to be. And, yesterday, the Supreme Court issued its opinion. The syllabus to the case might as well have said “we really hope y’all didn’t shave your balls for this, because it ain’t gonna be that kind of date.”
By now, everyone knows the case, right? Two guys go to a bakery and ask him to make a cake for their big fat gay wedding. Bakery owner says “I’m not doing that, because I am a Christian, and my Christian beliefs require me to be a douche to queers.” I paraphrase, but that’s essentially what it was.
But, operatively, he did say that they could have anything else they wanted, so he would serve gays, just not a gay wedding cake – because again, his interpretation of Christianity didn’t jibe with two guys either being really happy together or making the same stupid decision that straight people have made for generations.
The baker claimed that “using his artistic skills to make an expressive statement, a wedding endorsement in his own voice and of his own creation, has a significant First Amendment speech component and implicates his deep and sincere religious beliefs.” But, when he was brought up on charges before the Colorado Civil Rights Commission, the members of the commission “showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection.”
The outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context of recognizing that these disputes must be re- solved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.
Ultimately, in this case, nobody really “won.” The baker “wins” because technically he “won.” But, all he “won” was the right to have the charges brought against him without the administrative panel making snarky comments about his religious beliefs.
The cause of gay rights was not advanced at all. And, the real issue here — the First Amendment issue, is not being addressed at all — except in a pretty damn good concurrence by Justice Thomas, joined by Justice Gorsuch. (Starts on Page 38 of 59) His concurrence is, of course, foreshadowing either the majority or the minority when this case finally comes to a head. Thomas (I believe correctly) says that designing a wedding cake is no mere act of throwing eggs and flour into a bowl – but is full of artistic creativity. Harnessing (or enslaving) an artist to create that which he does not wish to create is a travesty against the First Amendment.
In any event, this is a pretty short post on a pretty long opinion – because that’s all this opinion needs. Those celebrating a “victory” and those bemoaning a “defeat” are both wrong. This case is a punt of epic proportions, leaving nothing resolved. So, if you’re a Gay Rights fan, to the extent you would sacrifice the First Amendment at the altar of “equality,” then you should not feel defeated. If you’re a First Amendment advocate, you really shouldn’t feel too smug – except in knowing that you have a guaranteed two votes when this comes up again. However, you should also understand that you definitely don’t have Ginsburg or Sotomayor on your side either (they wrote the dissent).
So, once this case finally gets back to the Supreme Court, it is a 2-2 tie at the outset.
